RE TAMANG BHIM BAHADUR

CACV 148/2018

[2018] HKCA 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 148 OF 2018

(ON APPEAL FROM HCAL NO. 654 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 27 September 2018, this Court (Cheung and Chu JJA) handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 3 October 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  Pursuant to the directions of the Registrar of Civil Appeals given, the applicant had lodged a written submission on 18 October 2018.

4.  In accordance with paragraph 3 of Practice Direction 2.1 Application for leave to appeal to the Court of Final Appeal filed in the court of Appeal in Civil Cases, we have processed the present application on paper.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The Notice of Motion set out the following proposed grounds of appeal:

(1) The applicant was not aware that he had to lodge skeleton submission, and he did not know what skeleton submissions mean (“Ground (1)”).

(2) An oral hearing was essential to the applicant’s case because he could not read, write or speak English and could only rely on external help, which was not professional help (“Ground (2)”).

7.  The applicant’s written submission made the following further points:

(1) If the requirement for skeleton submissions had been translated or interpreted to the applicant, he would be able to comply with it (“Point (1)”).

(2) Since the applicant was a non-refoulement claimant, he should have been given the benefit of the doubt even though he failed to comply with the Court’s direction.  As he had requested for an oral hearing in his Notice of Appeal, the applicant should have been granted an oral hearing to discuss his case (“Point (2)”).

(3) The Director had failed to give him a fair hearing on the BOR 2 assessment (“Point (3)”). 

(4) It was unfair for the Court to observe that at the oral hearing before the Board, the applicant did not raise with the Board that he had difficulties understanding what a BOR 2 assessment entailed because he was unaware of his rights and could not have raised any issue on it (“Point (4)”).

8.  All the matters advanced by the applicant relate to the circumstances of his non-refoulement claim and his case.  They do not involve any question of great general or public importance.

9.  In any event, the proposed grounds of appeal are unarguable.  Firstly, the Court had by two letters informed the applicant of: (i) the direction to lodge skeleton argument no less than 28 days before the hearing; (ii) what is required of a skeleton submission; and (iii) the consequences if he failed to comply with the direction.  The applicant does not dispute he had received the Court’s letters.  As the appellant having the conduct of the appeal, if indeed he did not understand the letter or what was required of him, he should have taken step to find out and could not just put the letters to one side.  There is, however, no indication of what step he had taken to ascertain the content of the letters and the Court’s direction. Ground (1) and the argument in Point (1) have no merit.         

10.  Secondly, we had in paragraph 3 of the Judgment explained the reasons underlying the requirement to lodge skeleton submission and the Court treating failure to comply with the requirement after being warned of the consequence of default as the abandonment of the right to an oral hearing.  There is no merit in Ground (2) and Point (2).

11.  Thirdly, for the reasons given by the Judge in the Form CALL-1 dated 4 May 2018 and by this Court in paragraph 15 of the Judgment,    the complaints in Points (3) and (4) cannot stand.

12.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision

13.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.